With DADT repeal all but dead, we turn our attention to California, where oral arguments are set today in the federal challenge to Proposition 8.
But we also inquired of Ken Upton, a senior staff attorney at Lambda Legal in Dallas, as to what he’ll be looking for this afternoon. Here’s what Upton said:
I’ll be particularly interested in the panel’s questions surrounding standing (the constitutional principle that says only people actually affected or injured by the dispute have a right to litigate it, not people who merely have an opinion about it in a general sense). Courts can be willing to turn to this doctrine when appropriate to dispose of cases they aren’t ready to decide on the merits.
As for the second session, I’m interested in how the panel reacts to the evidence at trial and what weight they choose to give it. The marriage cases that were lost (e.g., NY, WA, IN, AZ) all resulted from a court willing to allow the government to speculate about the justifications for excluding same-sex couples from marriage. The victories happened when courts required the government to give real justifications that are grounded in fact, not theories made up after the fact based on rank speculation or outdated stereotypes. That will be the key here. How will the panel treat the evidence (which was overwhelmingly supportive of striking down Prop 8)?
It will be fun to watch (for lawyers, at least — might be like watching paint dry for many non-lawyers).